Thursday, September 14, 2017

Campus Rape as Explanation for Trump's Election: A New Low

[Note: I have edited the twelfth paragraph of this post for clarity. NHB, 1/30/2018]

by Neil H. Buchanan

In the era of Trump, there is no shortage of surprises in the news, and those surprises are almost always unpleasant. When the news concerns Secretary of Education Betsy DeVos, all one can do is dive into the story with teeth clenched and wonder what new thing she has done or said that will set back America by another few decades.

It was a real surprise last week, therefore, when DeVos made an announcement that was not so facially outrageous that one wondered how fifty U.S. Senators (assisted by Vice President Pence, of course) had swallowed hard enough to put her in a position with real power.

This is not to say that DeVos had done something that pleased everyone -- and I am certainly not predicting that what she is going to do will be anything but awful. She had, after all, announced plans to, ahem, revisit Obama-era guidance on how American colleges and universities should handle accusations of rape.

Campus rape is obviously an important and difficult subject, one that the Trump Administration is uniquely unfit to address. Even if it is obvious where DeVos is going with this, however, some reasonable people were willing to give her credit for announcing a deliberative approach.

What is especially of interest to me is that DeVos's announcement about campus rape is being used by so-called thoughtful conservatives as yet another pretext to attack liberalism -- indeed, modernism -- in general.

These conservatives used DeVos's announcement as an opening to blame liberals for everything under the sun. Especially when we start talking about sex, especially sexual violence, conservatives show their true colors.

Reasonable people can, of course, differ over exactly how college administrators should deal with sexual assaults on campus. As with any system in which someone is or might be accused of violating any law or rule, there is a wide range of options regarding admissibility of evidence, standards of proof, confrontation of witnesses, and so on.

If courts and legal scholars are still disagreeing among themselves about the meaning of the Constitution's due process clause and everything else that goes along with the rule of law, we should hardly be surprised that there is a range of reasonable opinion about how to deal with the persistent problem of campus rape -- a problem that is, of course, a subset of the general problem of violence against women everywhere in society, in the U.S. and (often in even more shocking ways) around the world.

I was thus not surprised when Ruth Marcus, a reliably sober-minded Washington Post columnist, took a charitable (but skeptical) wait-and-see approach in response to DeVos's announcement. Marcus described the claim that the Obama Administration's response to the crisis of campus sexual assault had gone too far, noting in particular that some scholars with serious feminist credentials have loudly criticized the Obama approach.

Although I am being generous about Marcus's generosity here, I hasten to add that I am not endorsing the view that the Obama approach was wrong. I am simply agreeing with her observation that these are difficult questions, and difficult questions deserve careful consideration.

I am also all too aware, of course, that DeVos's Education Department is particularly ill-suited to deal carefully with these issues. Candice Jackson, DeVos's acting assistant secretary for civil rights, recently claimed that "ninety percent" of accusations of campus rapes are the result of both people being drunk and the woman later deciding that "sleeping together was not quite right." That Jackson eventually apologized for being "flippant" is hardly enough to suggest that the Trump Administration is not aching to go back to the bad old days.

In any case, the people who are somewhere between distraught and incensed about DeVos's intervention are making arguments that, at the very least, suggest that the Obama-era changes made important progress in addressing a critical issue. The only serious concern from people like Marcus seems to be that some colleges have in various ways overreacted to the changed environment and are now railroading innocent young men.

Marcus offers the thought that on-campus adjudication should "preferably [be] based on a standard higher than a mere preponderance of evidence." That may or may not be true, but at least she avoids the error that so many others make in viewing these non-criminal proceedings as deserving of the beyond-a-reasonable-doubt standard that we use when a person's liberty is at stake.

After all, even though we still believe that it is better that ten guilty men should go free rather than one innocent man go to prison, we might nonetheless think that maybe the ratio should be a bit different if we are asking how many campus rapists should be allowed back on campus rather than one innocent man be told to go somewhere else to get an education. The stakes of mistaken findings of guilt in on-campus proceedings can be high, but they are categorically different from prison time and criminal records.

As I noted above, however, although I am interested in the details of what one might do to improve the Obama Administration's approach to campus rape, I am also interested in how conservative pundits have used this topic as a pretext to attack their enemies. I will focus here on two of the right-wing columnists who are given twice-weekly access to the privileged platform of the op-ed page of The New York Times.

The newest Times columnist, Bret Stephens, wrote a column on September 8 in which he was positively giddy that the Obama approach was going to be dismantled. He asserted that Obama's approach was "Exhibit A in the overreach of an administrative state pursuing a narrow
ideological agenda through methods both lawless and aggressive."

Stephens added that, under those circumstances, even a letter "posing as mere 'guidance' could acquire the force of holy writ
because no campus administrator was going to risk his federal funds for
the sake of holding dear the innocence of students accused of rape." One can practically see Stephens' lip curling into a sneer as he wrote those words.

But does he not think that this is a serious issue? Well yes, addressing the problem of campus rape is a "laudable goal, even if evidence of its epidemic proportions is sketchy
and good numbers are all but impossible to come by. In 2015, 89 percent
of colleges and universities reported zero incidents of rape." Yes, they reported zero incidents.

Besides, Stephens says, the preponderance of the evidence standard (which he derides as "the '50 percent plus a feather' standard") is wrong. Why? "A standard of evidence usually applied in civil cases could be used to
impose serious sanctions on students for sexual acts of a criminal
nature."

What a move! The preponderance standard is being used in a non-criminal tribunal, where the consequences do not include prison or a criminal record, but because that accusation could also be pursued in a criminal court, Stephens tells us that we should be outraged. Apparently, civil cases for wrongful death should also be judged by criminal standards, because wrongful death is also "of a criminal nature."

But what is most outrageous about Stephens' column is the framing of the "real" issue, which is that the Obama standards for dealing with campus rape explain why Donald Trump was elected. I am not kidding. Stephens begins and ends his piece by arguing that liberals who wonder how Trump could have been elected need to understand that people would obviously be outraged by the "creeping authoritarianism" of the Obama Administration.

Stephens argues that when liberals ask of Trump voters, "How could they feel so desperate, politically speaking, to cast their ballots for him?" they should "look no further than" the Obama-era rules that DeVos is attacking, "perhaps even murmuring a word of thanks that Secretary DeVos means to bring it to a close."

This is sophistry of the highest order. Stephens, an anti-Trump conservative, decides that the seething grievances of the white nationalist Trump base are not the issue, but instead that there were a decisive number of people sitting in their homes saying, "Yes, he's unqualified and unhinged, but at least he won't issue regulatory orders that might be misapplied in some cases."

Even using the campus rape advisories as emblematic of something larger, this is fatuousness on steroids. That Stephens followed up that column by reprinting a heartfelt letter from a campus rape survivor was a nice gesture, but it merely fits with Stephens' pattern of trying to have it both ways, such as his aw-shucks defense of climate change denialism.

Stephens' conservative comrade at The Times, Ross Douthat, set up the same false narrative to justify people's rejection of liberal politicians in favor of Trump. Douthat's column about the DeVos intervention, however, was essentially a cri de coeur from the trenches of the culture wars.

Douthat, in fact, made Stephens' argument even more bluntly, saying "That’s how you get Trump" (italics in original) and added that "all of those Americans who prefer not to be governed by this liberalism ... voted accordingly last fall." Trump is Obama's fault, you see, because Obama embodied modern liberalism's temptation to use the government to try to do good things, and that never works out.

Although Douthat starts with the same procedural objection that Stephens offered -- calling the Obama approach to campus rape "a cautionary tale about how swiftly moral outrage and political pressure
can lead to kangaroo courts and star chambers, in which bias and bad science create an unshakable presumption of guilt for the accused" -- his objection is really about the 1960's.

Douthat, who is driven by a conservative ideology
based on his unique understanding of Catholic doctrine, is also an
anti-Trumper. Again, however, he could not resist the temptation to
deride the "spittle-flecked rants on Twitter" from opponents of DeVos's
announcement, and he then went straight for the cultural grievances that
animate him.

Douthat's concern is, of course, the "modern liberal campus" -- which he later dismisses as "the peculiar hothouse of the liberal academy" -- where conservatives seem to believe all bad things happen. Douthat assures his readers that "cultural liberalism" is really the cause of the campus rape problem. He offers this stem winder:

"[The Obama approach to campus rape is] a cautionary tale with specific implications for cultural liberalism,
because it demonstrates how easily an ideology founded on the pursuit of
perfect personal freedom can end up generating a new kind of police
state, how quickly the rule of pleasure gives way to the rule of secret
tribunals and Title IX administrators ..., and how making libertinism safe for
consenting semi-adults requires the evacuation of due process."

Liberals, in Douthat's telling, are all about "the pursuit of perfect personal freedom," obeying only "the rule of pleasure," and above all, making "libertinism safe" for quasi-children. If only we could go back to the good old tried-and-true verities, he muses, like "single-sex dorms, 'parietal' rules for male-female contact late at night, a general code emphasizing sexual restraint"! That's the ticket. Women had it great in the 1950's.

So the problem of women being raped on college campuses is caused by libertinism? How far is Douthat from Rush Limbaugh's attack on a woman who defended access to birth control as a "slut" and a "prostitute"? Maybe a quarter of an inch?

True, Douthat is saying that women (and men) are not to blame for their own moral turpitude. Liberals made them do it! Moreover, the philistine culture that he decries runs deeper than any concerns about due process, standards of proof, confronting one's accusers, and all that. The problem, in Douthat's telling, is that boys and girls are being told that it is okay to be sexual.

We have thus reached a new low. The anti-Trump right has now decided to blame Trump not on their conservative brethren who made common cause with a bigoted, misogynistic, ignorant narcissist. The blame, they tell us, lies instead with people who might (or might not) have made mistakes when resetting the standards of due process for dealing with issues like campus rape. Now we know.

I don't think it's that crazy. Campus rape maybe. But the accumulation of cultural changes--marriage, bathrooms, colleges, etc.--in a relatively short period certainly hurt the Democrats. It's less one issue than an overall feel. Reagan started as a reaction to the Berkeley riots of the 1960s . . . And never stopped.

While I generally agree with the content of this post, the tone Prof. Buchanan used when criticizing Bret Stephens' objection to the preponderance of evidence standard is not appropriate. This is even more true when a few paragraphs earlier Prof. Buchanan already conceded when Ruth Marcus makes the exact same point that it "may ... be true."

Let's at least be consistent within a single article, and not be outraged about something when a conservative columnist advocates it shortly after accepting the same thing as a valid argument when a columnist we like makes the exact same point.

I could be misunderstanding and Prof. Buchanan is actually objecting to Stephens rhetoric or his use of the words "of a criminal nature," but if so, that's basically an objection that Stephens is arriving at the same arguable position as Marcus (that the preponderance of evidence standard is too low) but that it is only his way of arriving at the position that is objectionable. I'm not even sure that Stephens use of the phrase "of a criminal nature" applies to the rape itself (as Prof. Buchanan seems to assume), or if it applies to the accusatory nature of campus tribunals.